Erik Mendoza-Olivas, A044 547 316 (BIA Feb. 26, 2014)

In this unpublished decision, the Board of Immigration Appeals (BIA) reversed a decision denying the respondent’s application for cancellation of removal under INA 240A(a) for failure to have accrued seven years of continuous residence. The Board found that the respondent’s admission to having possessed cocaine was not sufficient to trigger the “stop-time” because the admission was not valid under Matter of K-, 7 I&N Dec. 594 (BIA 1957), which requires respondents to be given an adequate definition of the crime in understandable terms. The decision was written by Member Linda Wendtland and joined by Member Roger Pauley. Member Patricia Cole concurred in the decision.

In this unpublished decision, the Board of Immigration Appeals (BIA) reversed a decision denying the respondent’s application for cancellation of removal under INA 240A(a) for failure to have accrued seven years of continuous residence. The Board found that the respondent’s admission to having possessed cocaine was not sufficient to trigger the “stop-time” because the admission was not valid under Matter of K-, 7 I&N Dec. 594 (BIA 1957), which requires respondents to be given an adequate definition of the crime in understandable terms. The decision was written by Member Linda Wendtland and joined by Member Roger Pauley. Member Patricia Cole concurred in the decision.

A044 547 316 or removable om the United States under section 23(a)(2) or 23(a)(4) Section 240A(d)(l) of the Act On Mach 16, 1994, the respondent was admited to the United Sttes as a ll permanet residet On November 5, 1999, the respodent pleded guilty to possession of a controlled substnce, to wit: more an 1 gram of cocaine (Exh. 1, 3). On November 1, 201, the stte cour vacated the conviction pusuant to

Pdi

v.

Kenuc,

559 US 356 (2010) (Exh. 4) Aer the stte cou vacted the 1999 conviction, the Department of Homeland Secuity led a Form I-261 (Additional Chges of Inadmissibiliy/Deportability) to replace the llegation conceng the 1999 convictio with n allegation conceng the respondents additionl 202 conviction r possession of cocaine (Exh. 5) It is the 2012 conviction on which the charge of deporability under section 237(a)(2)(B)(i) is based The respondent acknowledgd in his testimony o March 26, 2013 tht he possessed cocine in 1999 (IJ dted My 1, 2013, t 2, 3; Tr at 13839, 60. Atough the state court hd vcted the conviction, the Immigation Judge determined tht the respondent could not establish 7 years of continuous residence because the respondent's testimonial admission that he possessed cocaie in 1999 ws sucient to render him inadmissible under section 212(a)(2) of the Act, and thereby brek the continuous resiece that began when the respondent as ited as a al permnent resident in 1994 (IJ dated May 1, 2013, at 34)  In reching his conclusion, te Immigration Judge relied on

Mer of Jurdo,

24 &N Dec 29 (BIA 2006), in which we hed that an alien need not be chrged and und inadmissible or removbe on  ground speced in sectio 240A(d)((B) of the Act in order r the leged criminal conduct to terminate te aiens continuous residence in this couny. In

Mer of Jurdo, supr,

we obseved that Congress used the word "renders in section 240A(d)()(B) of the Act, and we und that the phase "renders the alien inadmissible or removable requires only that an alien "be or become inmissible or removble,

i.e,

be potentilly removable if so charged

Id

at 31 We explained that an alien need not have been convicted of an oense under section 212(a)(2) of the Act in order r the "stoptime rule to apply For expe, te e may be tiggered by an aliens dmission of acts constituting the essental eements of such an oense under section 212()(2)(A)(i)

Id

Thus, under

Mer of Jurdo, supr,

the stoptime rle potentially could pply to an alie such s the respondent who hs  vacted conviction We aso note that the respondent in

Mer of Jurdo,

like the respondent here, was a lawl permnent resident who had been charged with depoabiliy rather than inadissibility, but he nevertheless was held to have been rendered inadmissible r purposes of the stop-time ule

2

The Immigration Judge actully rerred to continuous "pysical presence, but we ssume this was inadverent, inasmuch s it is 7 years of contiuous